Corrective Justice and Liability for Misstatements

Abstract

Negligent misstatement isn't about the creation or recognition of a new right to information per se. Instead, the law of misstatements allows us better to enjoy our existing rights and to make better decisions with respect to them. Currently, the dominant manifestation of liability for negligent misstatements is predicated on an assumption of responsibility by the defendant (whether actual or implied). Those skeptical of the rights-based thesis are, perhaps not surprisingly, similarly skeptical of the assumption of responsibility model. As such, this model has become something of a shibboleth in misstatement theory between rights-based theorists and others. This thesis crosses party lines. While adhering to corrective justice, it denies that an assumption of responsibility by the defendant is the touchstone of liability for negligent misstatements. Indeed, there is nothing particularly distinct about misstatement liability as against normal liability in negligence predicated on proximity and foreseeability of harm. Further, this thesis argues that corrective justice is not only consistent with such a reading of the law, but necessitates it. Recognising a right means paying heed to its congeners. If we are to take rights seriously, then we must eschew reasoning — such as the assumption of responsibility thesis — that at once submerges real, extant rights while at the same time promoting a `right' that is diffuse, ill-defined, and with little basis in law.